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International Studies in Phenomenology and Philosophy

Series | Book | Chapter

206972

Kelsen's view of the addressee of the law

primary and secondary norms

Drury D. Stevenson

pp. 297-317

Abstract

The conventional wisdom, among both laypersons and academics, is that laws address the citizenry, or at least those citizens who could face liability prescribed by a given law. Hans Kelsen, in contrast, argued in several of his major works that the primary addressees of laws are the state actors who must implement, enforce, and apply the laws, and that the governed citizens are, at most, secondary addressees. This approach is logically consistent with Kelsen's overall views of the law and the state, and is phenomonologically consistent with the formulations used in modern codes, which use indicative mood rather than imperative mood for the verbs. Nevertheless, Kelsen's view remains unpopular in the United States, because it grates against American ideals of populism and democracy, as well as the cultural tendency to treat all political issues as moral issues. Yet Kelsen's approach provides a fertile analytic tool for understanding the persistence of technical terms and jargon within American codes, despite decades of attempted "plain language" reforms across the American legal system. His framework also has much to offer for understanding interpretive rules pertaining to legislative delegations of authority to executive agencies, boundaries of executive and judicial power, and problems with outsourcing state functions to private corporations. This chapter reviews Kelsen's core discussions of the addressee issue and explores its implications for these and other areas of legal research.

Publication details

Published in:

(2016) Hans Kelsen in America: selective affinities and the mysteries of academic influence. Dordrecht, Springer.

Pages: 297-317

DOI: 10.1007/978-3-319-33130-0_15

Full citation:

Stevenson Drury D. (2016) „Kelsen's view of the addressee of the law: primary and secondary norms“, In: , Hans Kelsen in America, Dordrecht, Springer, 297–317.